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Bifurcation

Rule 6.1.01 became effective on January 1, 2010. It provides as follows:

With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.

In Soulliere v. Robitaille Estate, 2013 ONSC 5073 (S.C.J.), the issue was whether a court may bifurcate a trial when one party does not consent. The Court of Appeal held in Kovach (Litigation Guardian of) v. Linn 2010 ONCA 126 (C.A.) that a judge does not have the jurisdiction to bifurcate a jury trial when one party does not consent. In Soulliere, however, the trial would be heard by judge alone.

Justice Smith held that r. 6.1.01 does not remove the Court's inherent jurisdiction to bifurcate a trial. In keeping with the Court of Appeal's decision in Elcano Acceptance v. Richmond, Richmond, Stabler and Mills (1989), 55 O.R. (2d) 56 (C.A.), a Court may order bifurcation in the clearest of cases. In the circumstances, Justice Smith declined to order bifurcation. The case was not so exceptional as to warrant departure from the normal practice of hearing liability and damages together, and there was potential prejudice to the plaintiff if forced to wait.